The Australian Law Reform Commission report, Without Fear or Favour: Judicial Impartiality and the Law on Bias (ALRC Report 138), was tabled in Parliament by the Attorney-General of Australia, the Hon Mark Dreyfus KC on 2 August 2022.
The ALRC made 14 recommendations to promote and protect judicial impartiality and public confidence in the Commonwealth judiciary, including:
- reforms to the procedures Commonwealth judges use to determine whether they should withdraw from a case when a party raises a potential issue of bias;
- publishing guidance on how litigants should raise issues of bias with a judge and how such issues are decided;
- establishing a Federal Judicial Commission as an additional and accessible oversight mechanism to support litigant and public confidence in judicial impartiality; and
- strengthening institutional structures to support judges and address systemic biases, including through changes to appointment procedures, judicial education, and collection of court user feedback and case data in the Commonwealth courts.
Download the Summary Report.
Download the Final Report.
Hard copy versions of the report are also available to purchase.
Further resources are available as part of the ALRC’s data analysis for the Review of Judicial Impartiality.
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Read the summary article Without Fear or Favour: the ALRC’s new report on judicial impartiality and the law on bias |
This discussion of the submissions received in response to Interim Report A is the sixth in a series of background papers to be released by the Australian Law Reform Commission (‘ALRC’) as part of its Review of the Legislative Framework for Corporations and Financial Services Regulation (‘the Inquiry’).
These background papers are intended to provide a high-level overview of topics of relevance to the Inquiry. Further background papers will be released throughout the duration of the Inquiry, addressing key principles and areas of research that underpin the development of recommendations.
The ALRC is required to publish two further Interim Reports during the Inquiry, and these Reports will include specific questions and proposals for public comment. A call for further submissions will be made on the release of each Interim Report. In the meantime, feedback on the background papers is welcome at any time by email to financial.services@alrc.gov.au.
This discussion of the role of risk in reform of Australian financial services law is the fifth in a series of background papers to be released by the Australian Law Reform Commission as part of its Review of the Legislative Framework for Corporations and Financial Services Regulation (‘the Inquiry’).
These background papers are intended to provide a high-level overview of topics of relevance to the Inquiry. Further background papers will be released throughout the duration of the Inquiry, addressing key principles and areas of research that underpin the development of recommendations.
The ALRC is required to publish three Interim Reports during the Inquiry, and these Reports will include specific questions and proposals for public comment. A formal call for submissions will be made on the release of each Interim Report. In the meantime, feedback on the background papers is welcome at any time by email to financial.services@alrc.gov.au.
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The Australian Law Reform Commission report, Financial Services Legislation: Interim Report A (Report 137, 2021), was tabled in Parliament by the Attorney-General of Australia, the Senator the Hon Michaelia Cash on 30 November 2021.
Interim Report A contains recommendations, proposals, and questions in relation to the reform of corporations and financial services legislation. The recommendations in Interim Report A relate to matters of consensus at this stage in the process and are accordingly in a form that may be implemented prior to the conclusion of this Inquiry, if accepted by the Australian Government.
In respect of the proposals and questions, the ALRC is seeking written submissions from stakeholders. Submissions, together with further consultations, surveys, workshops, and seminars, will form part of the evidence base for subsequent Interim Reports and the Final Report.
Submissions closed 25 February 2022.
Download the Summary Report.
Download Interim Report A.
Hard copy versions of the report are also available to purchase.
Prototype Legislation AThe ALRC has developed prototype legislation to illustrate how some of the reforms discussed in Interim Report A could be implemented. The prototype legislation includes explanatory notes and a concordance table. |
Download additional resources referred to in Interim Report A:
- References to ‘financial product’ and ‘financial service’ in Commonwealth Acts: Summary of Commonwealth Acts other than the Corporations Act 2001 (Cth) and Australian Securities and Investments Commission Act 2001 (Cth) that use the terms ‘financial product’ or ‘financial service’.
- Advice-Related Exclusions and Exemptions: Summary of the effect of provisions, regulations, and ASIC legislative instruments that grant exclusions or exemptions from Chapter 7 of the Corporations Act 2001 (Cth) for advice-related activities.
- Process for Determining Retail Client Status: Overview of process for determining whether or not a financial product or service is provided to a person as a retail client under ss 761G and 761GA of the Corporations Act 2001 (Cth).
Further resources are available as part of the ALRC’s data analysis for the Review of the Legislative Framework for Corporations and Financial Services Regulation.
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Read the summary article Undue complexity in Australia’s corporations and financial services legislation |
This summary of key historical legislative developments is the fourth in a series of background papers to be released by the Australian Law Reform Commission as part of its Review of the Legislative Framework for Corporations and Financial Services Regulation (‘the Inquiry’).
These background papers are intended to provide a high-level overview of topics of relevance to the Inquiry. Further background papers will be released throughout the duration of the Inquiry, addressing key principles and areas of research that underpin the development of recommendations.
The ALRC is required to publish three Interim Reports during the Inquiry, and these Reports will include specific questions and proposals for public comment. A formal call for submissions will be made on the release of each Interim Report. In the meantime, feedback on the background papers is welcome at any time by email to financial.services@alrc.gov.au.
This discussion of legislation and its navigability is the third in a series of background papers to be released by the Australian Law Reform Commission as part of its Review of the Legislative Framework for Corporations and Financial Services Regulation (‘the Inquiry’).
These background papers are intended to provide a high-level overview of topics of relevance to the Inquiry. Further background papers will be released throughout the duration of the Inquiry, addressing key principles and areas of research that underpin the development of recommendations.
The ALRC is required to publish three Interim Reports during the Inquiry, and these Reports will include specific questions and proposals for public comment. A formal call for submissions will be made on the release of each Interim Report. In the meantime, feedback on the background papers is welcome at any time by email to financial.services@alrc.gov.au.
This summary of complexity and legislative design is the second in a series of background papers to be released by the Australian Law Reform Commission as part of its Review of the Legislative Framework for Corporations and Financial Services Regulation (‘the Inquiry’).
These background papers are intended to provide a high-level overview of topics of relevance to the Inquiry. Further background papers will be released throughout the duration of the Inquiry, addressing key principles and areas of research that underpin the development of recommendations.
The ALRC is required to publish three Interim Reports during the Inquiry, and these Reports will include specific questions and proposals for public comment. A formal call for submissions will be made on the release of each Interim Report. In the meantime, feedback on the background papers is welcome at any time by email to financial.services@alrc.gov.au.
This summary of initial stakeholder views is the first in a series of background papers to be released by the Australian Law Reform Commission as part of its Review of the Legislative Framework for Corporations and Financial Services Regulation (‘the Inquiry’).
These background papers are intended to provide a high-level overview of topics of relevance to the Inquiry. Further background papers will be released throughout the duration of the Inquiry, addressing key principles and areas of research that underpin the development of recommendations.
The ALRC is required to publish three Interim Reports during the Inquiry, and these Reports will include specific questions and proposals for public comment. A formal call for submissions will be made on the release of each Interim Report. In the meantime, feedback on the background papers is welcome at any time by email to financial.services@alrc.gov.au.
The ALRC seeks stakeholder submissions on 25 questions and reform proposals in relation to judicial impartiality and the law on bias.
The Terms of Reference for this Inquiry ask the ALRC to consider whether:
- the law about actual or apprehended bias relating to judicial decision-making is sufficient and appropriate to maintain public confidence in the administration of justice;
- the law provides clarity to decision-makers, the legal profession and the community about how to manage potential conflicts and perceptions of partiality; and
- the mechanisms for raising allegations of actual or apprehended bias, and deciding those allegations, are sufficient and appropriate.
The Inquiry relates to the law as it applies to judges in the High Court, Federal Court, Family Court and Federal Circuit Court.
Further research and analysis can be found in the Inquiry Background Papers.
Download the Judicial Impartiality Consultation Paper with all Background Papers.
Download the list of Judicial Impartiality Consultation Paper Questions and Proposals.
Submissions are due to the ALRC by 30 June 2021.
This paper considers the test used to decide when a judge will be disqualified from hearing a case because there is a risk that people might think they might be biased. The notion of judicial impartiality is so central to confidence in the administration of justice that the law has developed this mechanism — disqualification for apprehended bias — to avoid even the appearance of biased judicial decision-making. The paper considers the history of the test, critiques of the test, and reforms that have been proposed in academic commentary. It also briefly summarises alternative approaches used to identify situations where recusal is, and is not, required, in a number of other jurisdictions and specialised areas of practice.
This is one in a series of background papers produced by the Australian Law Reform Commission as part of its Review of Judicial Impartiality.
In April 2021, the ALRC will publish a Consultation Paper containing questions and draft proposals for public comment. A formal call for submissions will be made on its release. In addition, feedback on the background papers is welcome at any time by email to impartiality@alrc.gov.au.